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Harris v. Governale

Supreme Court of Alaska

November 1, 2013

Kimberly Y. HARRIS, Appellant,
v.
John G. GOVERNALE, Appellee.

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[Copyrighted Material Omitted]

Page 1054

Robin A. Taylor, Law Office of Robin Taylor, Anchorage, for Appellant.

John G. Governale, pro se, Anchorage, Appellee.

Before: FABE, Chief Justice, WINFREE, MAASSEN, and BOLGER, Justices.

OPINION

MAASSEN, Justice.

I. INTRODUCTION

Kimberly Mendez (formerly Kimberly Harris), planning a move from Alaska to Florida with her husband, sought an order granting her primary physical custody of her daughter. The superior court awarded primary physical custody instead to the girl's father, John Governale, who remains in Alaska. Kimberly appeals, contending that the superior court erred by overlooking or minimizing John's issues with domestic violence and substance abuse, his inability to meet their child's emotional needs and foster her relationship with Kimberly, and the relative instability in his domestic life. Kimberly argues in the alternative that even if the superior court was correct to award primary physical custody to John, it erred in its allocation of visitation time and expenses. We affirm on most issues. We remand for reconsideration of the best interests analysis in light of one incident of domestic violence that the superior court erred in analyzing, and for reconsideration of the allocation of visitation expenses.

II. FACTS AND PROCEEDINGS

John and Kimberly shared physical custody of their daughter from her birth in 2004 until July 2007, when they entered into an agreement by which John had primary physical custody and Kimberly had certain visitation rights. In 2008 Kimberly married Joshua Mendez, a staff sergeant in the United States Air Force. In June 2008 she filed a petition for a domestic violence protective order against John and a motion seeking full custody of their daughter. A long-term domestic violence protective order was issued. John and Kimberly settled their custody dispute in May 2009, agreeing to share physical custody and that Kimberly would dismiss the domestic violence protective order.

In November 2011, John and his girlfriend Anecia had an altercation in their home which resulted in John's arrest on a charge of assault in the fourth degree. The charge was ultimately dismissed, but the couple immediately separated, and John, with his daughter, moved into one unit of a duplex owned by his parents. In 2012 the Air Force transferred Kimberly's husband Joshua to Florida. Kimberly again filed a motion for primary physical custody, asserting that it was in the child's best interests to move to Florida with her.

Instead, the superior court awarded primary physical custody to John following trial. The superior court found this to be in the child's best interests because John was better able to provide her with long-term stability. The superior court based its ruling primarily on the facts that John had had primary physical custody of the child in the past and that she had formed a strong bond with John's parents, her paternal grandparents. The superior court found that the evidence was neutral as to the other best interests factors, including the existence of domestic violence or substance abuse in either household.

Kimberly appeals, arguing that the superior court gave too much weight to John's period of sole physical custody while failing to take into account the instability in his domestic situation and the bond that their daughter had formed with Kimberly's husband Joshua. Kimberly also argues that John had problems with domestic violence and alcohol abuse that the court failed to weigh, and that the superior court erred in finding that John was able and willing to encourage the mother-daughter relationship. Finally, Kimberly argues that the superior court erred in disregarding testimony from a teacher regarding the child's fear of discipline in John's home.

Kimberly argues in the alternative that if John is entitled to primary physical custody,

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the superior court erred in its allocation of visitation time and its allocation of the costs of visitation.

III. STANDARD OF REVIEW

" The superior court has broad discretion in deciding child custody issues." [1] We will not reverse a custody decision unless the " court has abused its discretion or the controlling factual findings are clearly erroneous." [2] " The superior court abuses its discretion if it considers improper factors in determining custody, fails to consider statutorily mandated factors, or assigns disproportionate weight to some factors while ignoring others." [3] A factual finding is clearly erroneous if, after reviewing the record, we are left with the definite impression that a mistake has been made.[4] We review for abuse of discretion the superior court's determination that a particular issue was not fully and ...


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